And those who strive hard for Us, We will most certainly guide them in Our ways; and Allah is most surely with the doers of good. 29:69 The Quran

Independent Judiciary & Democracy

Syed Javed Hussain

Democracy cannot flourish without independent judiciary. Without independent judiciary justice cannot be instituted. Without justice no society advancing peace, security, love and humanity can be structured: society will disappear into a ragtag mob of undisciplined, unprincipled and illogical swirling sea of brags hankering after their interests compromising with the sanctity of life, property and privacy of those around them; chaos is the net result of meddling with judiciary. About fourteen hundred years ago Imam Ali said, ‘A country can be sustained by a Kafir (non-Muslim) but tyranny cannot endure.’

General Musharraf’s Chief Justice fiasco is gathering storms to take him off the political scene of Pakistan: though many had expected the dust to settled down. For the first time in Pakistan’s history the nation is seeing silver linings in the darkening clouds of poverty, hunger, corruption, and nepotism, downright despondency of their leaders and the desperation of its aimless and flabbergasted youths.

It is time for broodings and some serious reflections. Politicians, civilian bureaucracy and military dictatorship all have exploited judiciary to sustain their stranglehold on the people of Pakistan. All three have done nothing to establish democratic and administrative institutions in the country.

Corruption in bureaucracy due to the weakening of democratic intuitions and resultant dependence of inept politicians on it have destroyed what used to be a great sustainable administrative institution in the country other than the military. And the military on its part jumped into the fray, always on flimsy, ridiculous and lousy excuses, to further aggravate the political scene of Pakistan and thereby weaken the democratic institutions. The vicious circle never allowed any breather to Pakistan.

Press in Pakistan maintained an iota of independence and exerted hard for its identity though moribund forces of vested interest did everything to throttle it. It was the only saving grace for a proud nation of 160 million with inept leaders fingering the nuclear button. We presented a very scary scenario to the world at large. No wonder the most part of the world was partial to India on the question of nuclear energy as well as all other problems besetting the two nations.

If the Judiciary had not given in to pressure and coercion from the military and civilian bureaucracy the fate of Pakistan would have been markedly different. At the time of crisis, whenever it was a defining moment for Pakistan, whenever Judiciary was looked to for inspiration, guidance and leadership it disappointed the people of Pakistan, very brief interregnum of relief notwithstanding.

For the first time when a lot had depended on Pakistan Judiciary in the famous Maulvi Tamizuddin Khan vs. The Federation of Pakistan case in 1954, the petitioner, the Speaker of the Assembly, challenged the unconstitutional dissolution of Pakistan’s First Constituent Assembly by Governor General Ghulam Mohammad.

Relief in this case would have changed the fate of Pakistan. The then Chief Justice of Pakistan, Justice Mohammad Munir, however, gave a verdict that not only adversely affected the reputation of the newly born country abroad it opened a door of opportunity for the political adventurers of the future: Pakistan’s History, otherwise, would have been different.

Justice Munir in many of his formal and informal meetings noted that the issue before the court was not merely a legal issue. He desired that such issues should be resolved in the political sphere. According to him the best instruments to resolve such issues would have been negotiations and compromise.

He did not have confidence in the ability of the court to enforce a decision. He even noted that the Court did not have any instrument of power to enforce its ruling. He feared that the government with all the powers at its disposals would easily ignore the court’s ruling.

His misgivings were not unfounded though, yet he should have considered that History of a country was in the making and any bad decision would have grave repercussions. He sided with the Government and coined ‘Doctrine of Necessity’ and threw the country into the worst constitutional crisis of its kind from which the country has not recovered so far. The Supreme Court of Pakistan has yet to throw this doctrine off the board to clean its Aegean stables.

This ‘Doctrine of Necessity’ injected into the body politics of Pakistan has proved cancerous for the development, prosperity, political stability, institutional maturity of Pakistan at all levels. Judiciary under Justice Munir did to Pakistan what a hundred dictators would not have done at their worst. Subsequent political leanings of the Judiciary have caused much more damage to Pakistan than narrow-mindedness, intolerance and bigotry of its inept, corrupt and bungling politicians spearheaded by equally shallow, thoughtless power hungry generals.

Justice Iftikhar Ahmed’s return to the Supreme Court under pressure from the civil society is the first good thing that has happened to Pakistan in whole of its chequered history. A dictator has been pressured into taking his hands off the most vital organ of a civil society.

What Musharraf did was not anything unusual in Pakistan. He did what other dictators/rulers in Pakistan have all along been doing. He only was more audacious and reckless then his predecessors who exploited judiciary rather discretely.

Justice Iftikhar’s recent decisions regarding Javed Hashmi, Benazir Bhutto, Nawaz Sharief and Shahbaz Sharief have given a ray of hope to the people of Pakistan. With increasing religious fanaticism, political uncertainty, administrative bungling, corruption and lawlessness the two things that can save Pakistan are judicial activism and hyperactive independent print and electronic media. We need them to save the country from falling off the ridges to shame, despondency and utter oblivion.

﻿

Information

General Musharraf’s Chief Justice fiasco is gathering storms to take him off the political scene of Pakistan: though many had expected the dust to settled down. For the first time in Pakistan’s history the nation is seeing silver linings in the darkening clouds of poverty, hunger, corruption, and nepotism, downright despondency of their leaders and the desperation of its aimless and flabbergasted youths.﻿